Health Privacy Rules Butt Against Gun Rules

WASHINGTON (CN) – As part of President Barack Obama’s actions to reduce gun violence, the Department of Health and Human Services is soliciting public comments on improving the background check system for mentally ill people deemed dangerous to themselves or others. The department is considering amending the Health Insurance Portability and Accountability Act (HIPAA) privacy rule to allow covered entities to disclose the identities of those deemed dangerous. In January, President Obama announced a number of executive actions meant to curb American gun violence by improving the background check system nationwide, among other things. The National Instant Criminal Background Check System (NICS) was created to help enforce prohibitions on selling guns to people the government has found dangerous, in a variety of ways. Under federal law, people who have been formally found to be a danger to themselves and others are disqualified from owning firearms. The formal determinations are referred to as “mental health prohibitors.” There has been some concern, however, that HIPAA’s privacy rule may be a barrier to reporting the identities of people with mental illness, in some states. This week, the DHHS issued an advance notice of proposed rulemaking to solicit comments about how potential barriers to the background check system may be addressed. “Because of the variety of state laws, there may be state agencies, boards, commissions, or other lawful authorities outside the court system that are involved in some involuntary commitments or mental health adjudications,” the DHHS wrote. “At this time, we have insufficient data regarding to what extent these [authorities] that order involuntary commitments or conduct mental health adjudications are also HIPAA covered entities. Moreover, we understand that some states have designated repositories to collect and report to the NICS the identities of individuals subject to the mental health prohibitor. We also do not have data to determine to what extent any of these repositories is also a HIPAA covered entity (e.g., a state health agency).” The department noted that many states are not reporting “essential mental health prohibitor information” to the national background check database. To address these concerns, the department is considering amending the HIPAA privacy rule to allow entities to disclose the identities of those with mental health prohibitors. “In crafting the elements of an express permission, we would consider limiting the information to be disclosed to the minimum data necessary for NICS purposes, such as the names of the individuals who are subject to the mental health prohibitor, demographic information such as dates of birth, and codes identifying the reporting entity and the relevant prohibitor,” the department wrote. “We would not consider permitting the disclosure of an individual’s treatment record or any other clinical or diagnostic information for this purpose.” The department published 15 questions for relevant parties to answer and is soliciting comments until June 7.